Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This is an ADA and Unruh case. Plaintiff Shonna Counter has spinal muscular atrophy, a rare, recessive, progressive, degenerative neuromuscular disorder. This condition weakens her muscle strength, significantly limiting or impairing her ability to walk. She uses a powered wheelchair for mobility.   

Defendant Kiff Kafe is a coffee shop and Mediterranean style restaurant, located at 12229 W. Pico Blvd., Los Angeles, CA 90064 (the “Property”).  Defendant Dolphin Properties, LLC owns the Property.  Plaintiff went to the Kiff Kafe on July 26, 2023, and returned on August 17, 2023, March 15, 2024, April 20, 2024, and July 10, 2024.  On each of her visits, Plaintiff claims she “encountered path of travel/accessible route barriers.”   

This hearing is on Plaintiff’s demurrer to Defendant Dolphin Properties, LLC’s answer.  The answer contains nine affirmative defenses, with the ninth affirmative defense reserving the “right to assert such additional affirmative defenses by amendment at such time that it may be appropriate.”  Plaintiff demurs to the answer on the grounds that none of the affirmative defenses is supported by an adequate factual basis, and several are inapplicable and/or unsupported by law.  There was no opposition filed as of the posting of this tentative ruling.     

MEET AND CONFER 

Code Civ. Proc. §430.41, subdivision (a), requires meeting and conferring “in person or by telephone.”  Plaintiff’s counsel sent an email to defense counsel asking for a time to meet and confer but defense counsel rebuffed Plaintiff’s efforts stating that Defendant would stand on its pleadings.  The Court concludes that Plaintiff has satisfied her meet and confer obligations. 

LEGAL STANDARD 

Plaintiff may demur to an answer on the ground of insufficient pleading of defenses. (Code Civ. Proc., §430.20.)  Under Code Civ. Proc. §431.30, subdivision (g), every affirmative defense “shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.”  Legal conclusions are insufficient, and an answer must allege “facts averred as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.”  (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)   

Under Code Civ. Proc. §431.30, subdivision (b)(2), “the answer to a complaint must include [a] statement of any new matter constituting a defense.  The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff.  Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as new matter.”  (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.)   

Courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Defendant alleges nine affirmative defenses: (1) complaint insufficient to constitute cause of action, (2) failure to mitigate damages, (3) estoppel, (4) waiver, (5) statute of limitations, (6) standing, (7) unclean hands, (8) proximate cause, and (9) additional affirmative defenses.   

As to the first affirmative defense, Plaintiff argues it is not an affirmative defense but merely an argument that Plaintiff cannot state a claim.  While Plaintiff is technically accurate, our Courts of Appeal have held that the defense that a complaint fails to state facts sufficient to constitute a cause of action may be alleged by an answer. (E.g., Stevens v. Torregano (1961) 192 Cal. App. 2d 105, 112; Hulsey v. Koehler (1990) 218 Cal. App. 3d 1150, 1158.)  Accordingly, the Court overrules the demurrer to the first affirmative defense.   

As to the second affirmative defense (failure to mitigate damages), Plaintiff argues Defendant does not allege facts to support the defense, and in any event, mitigation of damages is not a recognized defense to violations of civil rights as alleged in the Complaint.  As Defendant has not filed an opposition, it has conceded this issue and is deemed to have abandoned this defense.  Even if it had not, the defense is proffered in the form of “terse legal conclusions,” rather than as “facts averred as carefully and with as much detail as the facts which constitute the cause of action are alleged in the complaint.”  (FPI Development, 231 Cal.App.3d at 384.)  Accordingly, the Court sustains the demurrer to the second affirmative defense without leave to amend.   

As to the third, fourth and seventh affirmative defenses (for waiver, estoppel and unclean hands), Plaintiff argues that these are equitable defenses that do not apply to bar injunctive remedies authorized by statute, and in any event, the defenses lack factual support.  The Court agrees.  “[E]quitable principles may not be applied in opposition to statutory enactments or to defeat public policy established by the Legislature.”  (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 180.)  Accordingly, the Court sustains the demurrer to these affirmative defenses without leave to amend.   

As to the fifth affirmative defense (that the claims are time-barred), Plaintiff argues the defense does not allege sufficient facts including when the claim allegedly accrued.  The Court agrees that this defense is not properly supported.  Accordingly, the Court sustains the demurrer to this defense without leave to amend.   

As to the sixth affirmative defense (that Plaintiff has not established proximate cause), Plaintiff argues that while the defense may be plausible in a disability discrimination case (in the event another party was responsible for the violations), the answer does not provide any new facts that would support the defense.  The Court agrees.  Without further facts, it is unclear why Defendant is asserting the lack of proximate cause.  Accordingly, the Court sustains the demurrer to the sixth affirmative defense without leave to amend.   

As to the ninth affirmative defense (which reserves the right to assert additional affirmative defenses), Plaintiff argues this is not a proper defense.  The Court agrees.  The ninth affirmative defense is not even a defense.  To the extent, Defendant discovers additional facts that would support additional affirmative defenses, it may move to amend its answer.  The Court therefore sustains the demurrer to the ninth affirmative defense without leave to amend.    

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS IN PART and OVERRULES IN PART Plaintiff’s demurrer to the answer without leave to amend.        

DATED:  April 17, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court